Ricardo Fernandez vs. NLRC and DM Consunji, Inc.

(1994, Nocon)
FACTS: Fernandez was hired by DM Consunji (November 1974). He worked for the
latter until March 1936, when his employment was terminated on the ground that
the project to which he was assigned was already completed. He thus filed a
complaint for illegal dismissal with the Labor Arbiter.
The Labor Arbiter (May 1988) found that Fernandez worked continuously in various
projects ranging from 5 to 20 years and belonged to a workpool (i.e. his dismissal
was illegal). DM Consunji appealed, on the ground that Fernandez was a project
employee hired on a project-to-project basis, depending on the availability of
projects. It pointed to the gaps in Fernandez employment history to show that he
was hired on an off-and-on basis.
The NLRC (September 1989), in view of (1) lack of evidence to prove the continuous
employment of Fernandez, and (2) the intermittent nature of their work as shown by
project contracts, ruled that Fernandez was a project employee. Fernandez
interposed a MFR which was denied for lack of merit (July 1991). The NLRC also
noted that the MFR was filed only on January 29, 1990, which was beyond the 10d
reglementary period from date of receipt of decision (November 13, 1989).
Without mentioning the denial of the MFR, Ricardo Fernandez filed a petition before
the SC, assailing the NLRC Decision, arguing that it is more in keeping with the
intent and spirit of the law to consider him as regular employees.
ISSUE: W/N the NLRC acted with GAD in reversing the Labor Arbiters decision by
dismissing the complaint for illegal dismissal on the finding that they were project
employees. NO.
RULING:
[Procedural] The yardstick to measure the timeliness of a petition for certiorari is
the reasonableness of the duration of time that had expired from the commission of
the acts complained of up to the institution of the proceedings to annul the same.
Here, Fernandez negligence or indifference for such a long period of time
(November 13, 1989 - receipt of Decision; Agusut 2, 1991 - receipt of denial of MFR;
July 21, 1992 - filing of petition for certiorari) has in the meantime rendered the
questioned decision final and no longer assailable.
[Substantive] DM Consunji presented material documents (covering November 5,
1974 - March 23, 1986) showing that Fernandez was hired as a project employee
with the specific dates of hiring, duration of hiring, dates of his lay-offs, and the
termination reports submitted to the Minister of Labor. Such documents clearly
showed gaps of month/s between the hiring of Fernandez in numerous projects
where he was assigned. Thus, he is governed by Policy Instruction No. 20:
Project employees are those employed in connection with a
particular construction project. They are not entitled to termination pay
if they are terminated as a result of the completion of the project or
any phase thereof in which they are employed, regardless of the

number of projects in which they have been employed by a particular

construction company.
The proviso in the second par. of Art. 280 (LC) (refer to your codal) deems as regular
employees only those casual employees who have rendered at least one year of
service regardless of the fact that such service may be continuous or broken. It is
NOT applicable to project employees who are specifically exempt therefrom.
(Mercado vs. NLRC):
GR: Office of a proviso is to qualify or modify only the phrase
immediately preceding it or restrain or limit the generality of the
clause that it immediately follows. A proviso is to be construed with
reference to the immediately preceding part of the provision to which it
is attached, and not to the statute itself or to other sections thereof.
EXC: Where the clear legislative intent is to restrain or qualify not only
the phrase immediately preceding it (the proviso) but also earlier
provisions of the statute or even the statute itself as a whole.
A careful reading of the proviso discloses that the same relates to employment
where the employee is engaged to perform activities that are usually necessary or
desirable in the usual business or trade of the employer but hastens to qualify that
project employment is specifically exempted therefrom.
The NLRC correctly observed that Fernandez failed to consider the requirement in
Policy Instruction No. 20 that to qualify as a member of a work pool, the worker
must still be considered an employee of the construction company while in the work
pool. There must be proof to the effect that Fernandez was under an obligation to be
always available on call of DM Consunji and that he was not free to offer his services
to other employers. However, Fernandez failed to introduce such evidence during
the times when there were no projects.
Lastly, Fernandez layoff and the termination reports were duly submitted to the
Minister of Labor in accordance with Policy Instruction No. 20:
Moreover, the company is not required to obtain a clearance
from the Secretary of Labor in connection with such termination. What
is required of the company is a report to the nearest Public
Employment Office for statistical purposes.
In other cases, it was uniformly held that the failure of the employer to report to the
nearest employment office the termination of workers everytime a project is
completed proves that the employees are not project employees. Contrariwise, the
faithful and regular effort of DM Consunji in reporting every completion of its project
and submitting the lay-off list of its employees proves the nature of employment of
the workers involved therein as project employees. Thus, it is clear that Fernandez
does not belong to the workpool from which DM Consunji would draw workers for
assignment to other projects at its discretion.